JOURNAL VOLUME – I ISSUE – II - LASDES

DECEMBER 2020

LASD

EDUCATIONAL

SOCIETY

JOURNAL

VOLUME – I ISSUE – II

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D I S C L A I M E R

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E D I T O R I A L B O A R D

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Mr. Utkarsh Srivastava

EDITOR IN CHIEF:

Mr. Devaang Savla

BCL, University of Oxford

Practising in High Court of Judicature at Allahabad.

.

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Ms. Aparna Bajpai

M.A, Azim Premji University.

EDITOR:

Ms. Anjali Rawat

BCL, University of Oxford.

EDITOR:

Mr. Aradhya Sethia

LL.M, Yale Law College.

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EDITOR:

Ms. Srishti Joshi

LL.B, University of Mumbai.

EDITOR:

Mr. Ayush Khanna

B.Com LL.B, Amity University, Noida

Practising in High Court of Judicature at Allahabad.

EDITOR:

Mr. Oliver Carr

BCL, University of Oxford.

EDITOR:

Mr. Tanmay Sadh

B.A. LL.B (Hons.) from University of Petroleum and Energy Studies,

Dehradun, Currently practising in High Court of Judicature at

Allahabad.

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ARTIFICIAL INSEMINATION: LEGAL AND ETHICAL

ISSUES - MOULI KAUSHAL JAIN

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ARTIFICIAL INSEMINATION: LEGAL AND ETHICAL ISSUES

ABSTRACT

The advancement of science and technology has impacted our

lives in a significant manner. It has not only enabled mankind to

control the birth rate by using contraceptives but has also

provided opportunities to childless couples to become parents

through various techniques. One such technique is Artificial

Insemination. The paper aims to examine various legal and

ethical issues arise from Artificial insemination donor (“AID”)

and the manner the law has dealt with them. First, the paper

deals with the question of the legitimacy of the child born

through AID; Second, the rights and obligations of husband are

discussed; Third, the question whether AID would amount to the

consummation of marriage or not is discussed; and lastly, the

anonymity of donor and problems arising out of the same is

discussed. For this research paper, the researcher has used

statues, case laws and articles.

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INTRODUCTION

Under the technique of Artificial insemination, semen is

deposited in the vagina, uterus or cervical canal by means of

instruments.1 Artificial insemination can be practised in three

ways. First, Artificial insemination husband (“AIH”); second,

Artificial insemination donor (“AID”); and, third, Combination

artificial insemination (CAI).

In AIH, the semen of husband is injected into a female body,

whereas in AID, semen of third party or donor is injected into

the female body. In CAI, the seed of husband and the third party

is mixed.2 The technique of AIH is used when the husband is

fertile but impotent. It didn’t pose legal problems as both

husband and wife are biological parents of the child. The

technique of AID is often used when the husband is infertile.

This technique poses problems, as in this technique, the wife is

the biological parent of the child, but not her husband. CAI is

normally used for a psychological benefit to the infertile

husband. However, this technique did not have medical

1Modi, Modis Textbook Of Medical Jurisprudence And Toxicology, (Lexis Nexis 1949) 314. 2Kusum, ‘ARTIFICIAL INSEMINATION AND THE LAW’ (1977) Journal of the Indian Law Institute Vol. 19,

No. 3 <http://www.jstor.com/stable/43950516> accessed on 4 September 2020.

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superiority over AID.3 AID is the most popular technique and

involves complex legal and ethical questions. Hence, the

purview of this research paper is limited to AID.

3PriyashaSaksena, ‘ARTIFICIAL INSEMINATION AND THE FAMILY’ (2008) National Law School of India

Review, Vol. 20, No. 1 < https://www.jstor.org/stable/44283673> accessed on 4 September 2020.

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The legitimacy of a child born through AID

The legitimacy of the child is depended on the relationship

between the mother and father at the time of the child’s birth.

The right of a child, to a large extent, is determined by his status.

The legitimacy of a child is further based on the question,

whether the act of AID amounts to adultery or not. If AID

amounts to adultery, the child will be considered illegitimate, as

it would mean that child is born out of wedlock. Whereas, if

AID did not amount to adultery, a child would be considered as

legitimate. 4 Hence, adultery and legitimacy are interlinked

subjects in family law. The word adultery is derived from the

Latin term adulterate, meaning ‘to defile’. As the AID

introduces, ‘spurious child’ 5 in the family, the question of

adultery arises.

The first reported case, when the question of adultery was raised

in the Canadian case Oxford v. Oxford6. In this case, the court

opines that the essence of adultery is the voluntary surrender of

reproductive powers to the person other than husband or wife.

4Ibid. 5Kusum (n 2). 658 D.L.R. 251 (1921).

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Hence, the court emphasized that the essence of adultery is not

sexual intercourse but the act that may introduce a false strain of

blood in the family. Going with this definition, the court held

that the technique of AID would amount to adultery and hence

child born through this technique would be illegitimate.

Courts in the US have also reached the same conclusion in a

number of cases.7 However, the trend was reversed in People v.

Sorensen8. In this case, the court held that the husband who had

consented to his wife giving birth to the child through AID will

be considered as a lawful father. The court further held that act

of AID is not adulterous. Similarly, in Strand v. Strand9, while

deciding on the custody of a child born through AID, the court

held that the husband had visitation rights, even though he is not

the biological father of the child. The court further held that

when the husband has consented to the AID, he has potentially

adopted or semi-adopted10 the child.

In English common law, the technique of AID had never

constituted adultery. As according to English law, the

7Doornbos v. Doornbos, 139 N.E.2d 844; Gursky v. Gursky 242 N.Y.S.2d 406. 866 Cal. Rptr. 7. 9(1948) 78 N.Y.S. 2d 390. 10Ibid.

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requirement for committing adultery was always sexual

penetration. In Maclennan v. Maclennan11, the court held sexual

intercourse is an essential element of adultery. And, sexual

intercourse was defined as penetration of the female organ by

the male organ. As AID did not involve sexual intercourse, the

court held, it can’t amount to adulterous act. However, the court

held that when the wife went through AID without consent of

the husband, will be a heinous offence and could be made as a

separate ground for divorce.

In India, sexual penetration is considered as a necessary element

of adultery. 12 Also, Indian Evidence Act provides that the

legitimacy of a child is presumed if the child is born in marriage

or within 288 days after its dissolution unless it can be shown

that the spouses did not have access to each other.13 The main

problem with this section is that it presumes sexual intercourse

as an absolute element for the conception of a child. Hence, if a

widow uses her dead husband’s preserved sperm to get pregnant,

11 (1958) Sess. Cas. 105. 12In Re AntonyAlR 1960 Mad. 308. 13Indian Evidence Act 1872, s 112.

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the child can easily prove to be illegitimate.14Thus, the Indian

Evidence Act would not be appropriate legislation to determine

the legitimacy of a child born through AID.

Till now, there is no legislation that deals with the question of

the legitimacy of a child born through AID in India. However,

supplementary guidelines and pending Bill on Artificial

Reproductive technology (“ART”) can indicate the Indian stance

on the issue. According to the Indian Council of Medical

Research (ICMR) Guidelines on ART, the child born through

assisted conception can be presumed to have all rights of

parentage, inheritance and support.15Similarly, ART (regulation)

bill, 2014 provides that the child born through AID will be

considered to be a legitimate child.16

Hence, currently, no legislation explicitly takes a stance on the

legitimacy of a child born through AID. However, the position

of English law, supplementary ICMR guidelines in India and the

14 Sandeep Kulshrestha, ‘ARTIFICIAL INSEMINATION AND PRESUMPTION OF PATERNITY IN INDIA’

(2018) International Journal of Advance Research and Innovative Ideas In Education Vol. 4 Issue

3<https://www.researchgate.net/publication/324942628> accessed 3 September 2020. 15Laxmi Murthy and Vani Subramanian, ‘ICMR guidelines on Assisted Reproductive Technology: lacking in vision,

wrapped in red tape’ (2007) Indian Journal of Medical Ethics Vol IV No 3

<https://doi.org/10.20529/IJME.2007.049> accessed 3 September 2020. 16 Assisted Reproductive Technology (Regulation) Bill 2014,s 61(1).

For the purposes of this research paper ART (Regulation) 2014Bill has been used. In February 2020, cabinet had

passed revised ART (regulation) Bill 2020, however, due to non-accessibility of the same, 2014 bill is used.

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essential requirement of sexual penetration for adultery in India,

indicates that child born through AID will not be considered an

illegitimate child and will enjoy all the rights that a legitimate

child does.

Rights and duties of husband

As AID is a departure from the traditional understanding of the

family, the question related to the rights and duties of husband

gains significance. Traditionally, there was no involvement of

third parties in matters as private as reproduction. However, in

AID, the third party is deeply involved. As the child born

through AID, is a biological child of only one of the parents, it

raises significant questions on the duties and rights of parties

involved.

In the United States, the husband is usually liable to maintain a

child born through AID, if had consented the same. In Gurshky

v Gurshky17the court held that the husband is liable to support

the child born through AID. The court opined that although

conceiving a child through the process of AID, is an adulterous

act, the husband would be liable to take care of the child as he

17242 N.Y.S.2d 406

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had consented in the writing. When the husband agreed to the

procedure of AID, he impliedly agrees to support the child.

Similarly, in Anonymous v. Anonymous18, the action of alimony

and child support was brought up by a woman against her

husband. The court held that when the husband had consented to

the AID procedure, he is obliged to maintain the child. The

scope of husband duties was further widened in People v.

Sorenson.19 In this case, the court held that the husband will be

criminally liable, for non-payment of support for a child born

through AID, if he has given his consent. Additionally, this

consent need not be necessarily in writing. The husband could

be held liable to maintain a child if he knew that his wife is

going through AID and he didn’t protest.20

Apart from the duties to maintain the child, the husband also has

certain rights over the child. In Strand v. Strand21 , after the

husband and wife were separated, the husband filed a suit for

visitation rights. Wife argued that a child is born through AID,

her husband is not a biological father. And thus, he should not

18246 N.Y.S.2d. 835 1966 Cal. Rptr. 7. 20In Re Baby Doe 353 S.E.2d. 877 2178 N.Y.S.2d 390

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have visitation rights. The court held that as the husband has

consented to the AID procedure, he is entitled to the same rights

as that of foster father. Further, In Re Adoption of Anonymous22,

the court held, in case of adoption of a child born through AID,

the consent of the husband is necessary.

In England, the Human Fertilisation and Embryology Act is the

governing legislation. According to this act, the husband is

treated as the father of the child born through AID. Hence, the

husband enjoys all rights and obligations as enjoyed by the

natural father.23 Further, the act explicitly prevents the donor

from being treated as the father of the child. Hence, the donor

has no obligations towards the child.24

In India, there is no specific position of law that deals with the

issue. However, ICMR Guidelines on ART, ART (regulation)

bill, 2014, and the Delhi Artificial Insemination (Human) Act,

1995 indicates that the husband has rights and duties toward the

child. Under the ICMR guidelines on ART, a child born through

AID would be presumed to have all rights of parentage and

22345 N.Y.S.2d 430. 23Human Fertilization and Embryology Act 1990s 28(2). 24Human Fertilization and Embryology Act 1990 s 28(6).

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inheritance.25Hence, these guidelines indicate that husband will

have all the rights and duties as enjoyed by natural father

towards their children. Similarly, under the Delhi Artificial

Insemination (Human) Act, the consent of both husband and

wife is necessary in order to conceive a child through AID.26

ART (regulation) bill, 2014, also grants the duties and rights to

husband towards the children born through AID. According to

ART (regulation) bill, written consent of both the spouses is

necessary.27 Hence, both the partners i.e. husband and wife have

the right to take the decision regarding conceiving a child

through the procedure of AID. Additionally, both the parents of

a minor child have the right to access any information about the

donor, except the name and address of the donor, to the extent

necessary for the welfare of the child. 28 Further, all the

information of both the wife and her husband should be kept

confidential. In usual circumstances, the information should not

disclose to anyone apart from the National Registry of Assisted

25Mukesh Yadav, ‘Medico-Legal & Ethical Aspects of Artificial Insemination’ (2006) Journal of Indian Academy of

Forensic Medicine Vol.28(4) <https://www.researchgate.net/publication/287999804> accessed 5 September 2020. 26Delhi Artificial Insemination (Human) Act 1995, s 14 (c). 27Assisted Reproductive Technology (Regulation) Bill 2014,s 58 (1). 28Assisted Reproductive Technology (Regulation) Bill 2014, s 58 (2).

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Reproductive Technology Clinics and ICMR Banks in India.29

However, in cases of a medical emergency, the relevant

information of the husband and wife can be disclosed either with

the consent of a couple or with an order of a court of competent

jurisdiction.30 In case of a child born through AID, the name of

the husband would be registered as the father’s name.31Thus,

this indicates that the husband would have all rights and duties

towards the child born through AID as exercised by the natural

father.

Hence, at present, there is no pan-India legislation that

determines rights and duties of husband, however, the ART

(regulation) bill, ICMR guidelines and Delhi Artificial

Insemination (Human) Act indicates that the husband would

have rights and duties similar to that of enjoyed by natural father

towards his children. Also, the position of English law and the

fact that AID is not treated as Adultery in India further indicates

the same.

29Assisted Reproductive Technology (Regulation) Bill 2014, s 58 (4). 30Assisted Reproductive Technology (Regulation) Bill 2014, s 58 (4). 31Assisted Reproductive Technology (Regulation) Bill 2014, s 61(6).

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Consummation of marriage

Another important legal issue that arises from the practice of

AID is the question whether AID would amount to the

consummation of marriage and whether a wife can seek divorce

on the ground of impotency or non-consummation of marriage

after undergoing to the procedure of AID. Most of the personal

laws in India provide non-consummation of marriage 32 and

impotency of the husband33 as a ground for divorce. Hence,

given the fact that both of these situations are grounds of divorce

in most personal laws, the question of whether AID procedure

amount to consummation gains significance.

In R.E.L. v. E.L.,34 the wife went through the procedure of AIH.

Subsequent to the birth of the child, the wife filed a suit for

nullity of marriage on the ground of non-consummation of

marriage. The court held that the conduct of wife going through

AIH would not amount to the consummation of marriage and

hence grant the divorce. However, this decision bastardizes the

32Hindu Marriage Act 1955, s 12(1)(a); Special Marriage Act 1954, s 25(1); Parsi Marriage and Divorce Act 1936, s

32(a). 33 Hindu Marriage Act 1955, s 12(a); Special Marriage Act 1954, s 24(2). 34 (1949) Probate Division 211.

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child. Similarly, in Slater v. Slater 35 attempted Artificial

insemination would not amount to the consummation of the

marriage. In this case, the parties tried to conceive a child

through AID, but they were unsuccessful.

In India, the question of whether Artificial insemination

amounts to the consummation of marriage and subsequently

would be a ground for divorce also depends on personal laws.

Personal laws deal with the issue of non-consummation in

varied ways. Parsi Marriage and Divorce act, 193636 provides

non-consummation of marriage within one year owing to willful

refusal of parties is a ground for divorce. Special Marriage Act,

195437 also provides non-consummation of marriage as a ground

for divorce but without any specific time limit. Hindu Marriage

Act, 1955 also provides for the same.38 However, this issue is

complex in Muslim law as there is a presumption of the

35 (1953) Probate Division 235. 36 Parsi Marriage and Divorce Act 1936, s 32(a). 37 Special Marriage Act 1954, s 25(1). 38 Hindu Marriage Act 1955, s 12(1)(a).

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consummation of the marriage in the presence of valid

retirement.39

However, it is argued that artificial insemination in any form, if

done with the consent of both the spouses, should amount to the

constructive consummation of the marriage. This position has

been argued because it would be in the best interest of the child.

AID and Anonymity of donor

In the procedure of AID, the child has two fathers. One who is

the genetic father of the child and second, the husband of the

mother who is recognized as a father as he has given his

consent. The involvement of two fathers disturbs the traditional

structure of the family. In certain countries, the adopted child is

granted the right to know his biological parents.40 Can a child

born through AID claim the right to know his biological

parents?

English law allows the child born by AID to access donor

information. The person is allowed to access the relevant

39Ateeque Khan, ‘ARTIFICIAL INSEMINATION AND SURROGATE PARENTHOOD: AN INDIAN SOCIO-

LEGAL PERSPECTIVE’(1989) Journal of the Indian Law Institute Vol. 31, No.<

http://www.jstor.com/stable/43951251> accessed 3 September 2020. 40Piyansha (n 3).

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information in order to determine whether the person to whom

he is going to get married is related or not.41 Similarly, Sweden

also allows the same. Whereas in Switzerland, France and

Canada, total anonymity of the donor is allowed.42

In India, the ART (regulation) bill provides that the medical

practitioner has to maintain all the relevant information, other

than the name and address of the person. 43 The Bill further

provides that revelation of the identity of donor would amount to

offence except in medical emergency cases. 44 Similarly, the

Delhi Artificial Insemination (Human) Act provides that

medical practitioner should keep the bio-data of the donor.45

However, this act also provides that the medical practitioner

should maintain secrecy about the identity of the donor.46Hence,

it is submitted that the rights of the donor to remain anonymous

should be respected and the identity of the donor should only

reveal in case of any medical emergency.

41Human Fertilisation and Embryology Act 1990, s. 31. 42 K.R. Mythili, ‘ARTIFICIAL INSEMINATION — LEGAL ISSUES’ (1997) Journal of the Indian Law Institute

Vol. 39, No. 2/4< http://www.jstor.com/stable/43953280> pp. 348-358, 351. 43 Assisted Reproductive Technology (Regulation) Bill 2014, s 46 (2). 44 Assisted Reproductive Technology (Regulation) Bill 2014, s 46 (3). 45Delhi Artificial Insemination (Human) Act 1995, s 14 (a). 46Delhi Artificial Insemination (Human) Act 1995, s 14 (f).

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CONCLUSION

In this paper, the researcher has made an honest attempt to

address some of the legal and ethical issues related to the child

born through AID. It is submitted that given the popularity of

the techniques of artificial insemination, there is a need to bring

some changes in current law. Currently, there is no pan India

legislation that deals with issues of AID. The changes in society

should be reflected in the changes of law; however, this is not

the case with family law. Family law has remained static and

unresponsive to fast-changing society. Similarly, Indian

Evidence act also did not take into account the evolution of

science and technology and assumes that sexual intercourse as a

necessary pre-condition to conceive a child.

Hence, it is submitted that there is a need for comprehensive

legislation to deal with the complex legal and ethical issues that

arise from the procedure of AID. These laws should be made

with the primary goal to protect the rights of children and

parents. Further, these laws should also strictly prohibit any

practice that can influence sex or any other trait of the child born

through AID.

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BIBLIOGRAPHY

Case

Anonymous v. Anonymous 246 N.Y.S.2d. 835

Doornbos v. Doornbos, 139 N.E.2d 844.

Gursky v. Gursky 242 N.Y.S.2d 406.

In Re Adoption of Anonymous 345 N.Y.S.2d 430,

In Re Antony AlR 1960 Mad. 308.

In Re Baby Doe 353 S.E.2d. 877

Maclennan v. Maclennan (1958) Sess. Cas. 105.

Oxford v. Oxford 58 D.L.R. 251 (1921).

People v. Sorenson66 Cal. Rptr. 7.

R.E.L. v. E.L (1949) Probate Division 211

Slater v. Slater (1953) Probate Division 235.

Strand v. Strand (1948) 78 N.Y.S. 2d 390

Statues

Assisted Reproductive Technology (Regulation) Bill 2014

Delhi Artificial Insemination (Human) Act 1995,

Hindu Marriage Act 1955

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Human Fertilization and Embryology Act 1990

Indian Evidence Act 1872

Parsi Marriage and Divorce Act 1936

Special Marriage Act 1954

The Pre-Natal Diagnostic Techniques (Regulation and

Prevention of Misuse) Act, 1994.

Books

Modi, Modis Textbook Of Medical Jurisprudence And

Toxicology, (Lexis Nexis 1949) 314.

Articles

Ateeque Khan, ARTIFICIAL INSEMINATION AND

SURROGATE PARENTHOOD: AN INDIAN SOCIO-

LEGAL PERSPECTIVE (1989) Journal of the Indian Law

Institute Vol. 31.

K.R. Mythili, ARTIFICIAL INSEMINATION — LEGAL

ISSUES (1997) Journal of the Indian Law Institute Vol. 39,

No. 2/4.

Kusum, ARTIFICIAL INSEMINATION AND THE LAW

(1977) Journal of the Indian Law Institute Vol. 19, No. 3

of 26

Laxmi Murthy and Vani Subramanian, ICMR guidelines on

Assisted Reproductive Technology: lacking in vision,

wrapped in red tape (2007) Indian Journal of Medical

Ethics Vol IV No 3.

Mukesh Yadav, Medico-Legal & Ethical Aspects of

Artificial Insemination (2006) Journal of Indian Academy

of Forensic Medicine Vol.28 (4).

PriyashaSaksena, ARTIFICIAL INSEMINATION AND THE

FAMILY (2008) National Law School of India Review,

Vol. 20, No. 1.

Sandeep Kulshrestha, ARTIFICIAL INSEMINATION AND

PRESUMPTION OF PATERNITY IN INDIA (2018)

International Journal of Advance Research and Innovative

Ideas in Education Vol. 4 Issue 3.

JOURNAL VOLUME – I ISSUE – II - LASDES

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